Part 5 – Hearings and Appeals

Application

(a) a hearing on an application for enrolment, call and admission or reinstatement,

(b) a hearing on a citation, and

(c) unless the context indicates otherwise, a review by a review board of a hearing decision.

Hearing panels

5-2 (1) A panel must consist of an odd number of persons but, subject to subrule (2), must not consist of one person.

(2) A panel may consist of one Bencher who is a lawyer if

(a) no facts are in dispute,

(b) the hearing is to consider a conditional admission under Rule 4-30 [Conditional admission and consent to disciplinary action],

(c) the hearing proceeds under Rule 4-33 [Summary hearing],

(d) the hearing is to consider a preliminary question under Rule 4-36 [Preliminary questions], or

(e) it is not otherwise possible, in the opinion of the President, to convene a panel in a reasonable period of time.

(3) A panel must

(a) be chaired by a lawyer, and

(b) include at least one Bencher or Life Bencher who is a lawyer.

(4) Panel members must be permanent residents of British Columbia over the age of majority.

(5) The chair of a panel who ceases to be a lawyer may, with the consent of the President, continue to chair the panel, and the panel may complete a hearing already scheduled or begun.

(5.1) If a member of a panel ceases to be a Bencher and does not become a Life Bencher, the panel may, with the consent of the President, complete a hearing already scheduled or begun.

(6) Two or more panels may proceed with separate matters at the same time.

(7) The President may refer a matter that is before a panel to another panel, fill a vacancy on a panel or terminate an appointment to a panel.

(8) Unless otherwise provided in the Act and these Rules, a panel must decide any matter by a majority, and the decision of the majority is the decision of the panel.

[(2), (3) and (5) amended, (5.1) added 03/2016]

Panel member unable to continue

5-3 (1) Despite Rule 5-2 [Hearing panels], if a member of a hearing panel cannot, for any reason, complete a hearing that has begun, the President may order that the panel continue with the remaining members.

(2) If the chair of a hearing panel cannot, for any reason, complete a hearing that has begun, the President may appoint another member of the hearing panel who is a lawyer as chair of the hearing panel.

[(2) amended 03/2016]

Disqualification

5-4 (1) The following persons must not participate in a panel hearing a citation:

(a) a person who participated in the decision that authorized issuing the citation;

(b) a Bencher who made an order under Rule 3-10 [Extraordinary action to protect public], 3-11 [Medical examination] or 4-23 [Interim suspension or practice conditions] regarding a matter forming the basis of the citation;

(c) a member of a panel that heard an application under Rule 4-26 [Review of interim suspension or practice conditions] to rescind or vary an interim suspension or practice condition or limitation in respect of a matter forming the basis of the citation.

(2) A person who participated in the decision to order the hearing on an application for enrolment as an articled student, for call and admission or for reinstatement must not participate in the panel on that hearing.

(3) A person must not appear as counsel for any party for three years after

(a) serving as a Bencher, or

(b) the completion of a hearing in which the person was a member of the panel.

[(1) amended 03/2016]

Compelling witnesses and production of documents

5-5 (1) In this rule “respondent” includes a shareholder, director, officer or employee of a respondent law corporation.

(2) A panel may

(a) compel the applicant or respondent to give evidence under oath, and

(b) at any time before or during a hearing, order the applicant or respondent to produce all files and records that are in the applicant’s or respondent’s possession or control that may be relevant to the matters raised by the application or in the citation.

(3) A person who is the subject of an order under subrule (2) (a) may be cross-examined by counsel representing the Society.

(4) A party to a proceeding under the Act and these Rules may prepare and serve a summons requiring a person to attend an oral or electronic hearing to give evidence in the form prescribed in Schedule 5 [Form of Summons].

Procedure

5-6 (1) Subject to the Act and these Rules, the panel may determine the practice and procedure to be followed at a hearing.

(2) Before a court reporter begins reporting the proceedings of a hearing, the chair of the panel must ensure that the reporter takes an oath or makes a solemn affirmation to faithfully and accurately report and transcribe the proceedings.

(3) The applicant, respondent or counsel for the Society may call witnesses to testify.

(4) All witnesses, including a respondent ordered to give evidence under section 41 (2) (a) [Panels],

(a) must take an oath or make a solemn affirmation, if competent to do so, before testifying, and

(b) are subject to cross-examination.

(5) The panel may make inquiries of a witness as it considers desirable.

(6) The hearing panel may accept any of the following as evidence:

(a) an agreed statement of facts;

(b) oral evidence;

(c) affidavit evidence;

(d) evidence tendered in a form agreed to by the respondent or applicant and Society counsel;

(e) an admission made or deemed to be made under Rule 4-28 [Notice to admit];

(f) any other evidence it considers appropriate.

Communication with Ombudsperson confidential

5-7 (1) This rule is to be interpreted in a way that will facilitate the Ombudsperson assisting in the resolution of disputes through communication without prejudice to the rights of any person.

(2) Communication between the Ombudsperson acting in that capacity and any person receiving or seeking assistance from the Ombudsperson is confidential and must remain confidential in order to foster an effective relationship between the Ombudsperson and that individual.

(3) The Ombudsperson must hold in strict confidence all information acquired in that capacity from participants.

(4) In a proceeding

(a) no one is permitted to give evidence about any discussion or other communication with the Ombudsperson in that capacity, and

(b) no record can be admitted in evidence or disclosed under Rule 4-34 [Demand for disclosure of evidence] or 4-35 [Application for details of the circumstances] if it was produced

(i) by or under the direction of the Ombudsperson in that capacity, or

(ii) by another person while receiving or seeking assistance from the Ombudsperson, unless the record would otherwise be admissible or subject to disclosure under Rule 4-34 [Demand for disclosure of evidence] or 4-35 [Application for details of the circum­stances].

Public hearing

5-8 (1) Every hearing is open to the public, but the panel or review board may exclude some or all members of the public in any circumstances it considers appropriate.

(2) On application by anyone, or on its own motion, the panel or review board may make the following orders to protect the interests of any person:

(a) an order that specific information not be disclosed;

(b) any other order regarding the conduct of the hearing necessary for the implementation of an order under paragraph (a).

(3) Despite the exclusion of the public under subrule (1) in a hearing on a citation, the complainant and one other person chosen by the complainant may remain in attendance during the hearing, unless the panel orders otherwise.

(4) Except as required under Rule 5-9 [Transcript and exhibits], when a hearing is in progress, no one is permitted to possess or operate any device for photographing, recording or broadcasting in the hearing room without the permission of the panel or review board, which the panel or review board in its discretion may refuse or grant, with or without conditions or restrictions.

(5) When a panel or review board makes an order or declines to make an order under this rule, the panel or review board must give written reasons for its decision.

Transcript and exhibits

5-9 (1) All proceedings at a hearing must be recorded by a court reporter, and any person may obtain, at his or her expense, a transcript pertaining to any part of the hearing that he or she was entitled to attend.

(2) Subject to solicitor-client privilege or an order under Rule 5-8 (2) [Public hearing], any person may obtain, at his or her own expense, a copy of an exhibit entered in evidence when a hearing is open to the public.

Decision

5-10 (1) A decision of a hearing panel is made by majority vote.

(2) On request, the Executive Director must disclose a panel’s written reasons for its decision, subject to the protection of solicitor and client privilege and confidentiality.

(3) When a hearing panel gives written reasons for its decision, it must not disclose in those reasons any information that is confidential or subject to solicitor and client privilege.

Costs of hearings

5-11 (1) A panel may order that an applicant or respondent pay the costs of a hearing referred to in Rule 5-1 [Application], and may set a time for payment.

(2) A review board may order that an applicant or respondent pay the costs of a review under section 47, and may set a time for payment.

(3) Subject to subrule (4), the panel or review board must have regard to the tariff of costs in Schedule 4 [Tariff for hearing and review costs] to these Rules in calculating the costs payable by an applicant, a respondent or the Society.

(4) A panel or review board may order that the Society, an applicant or a respondent recover no costs or costs in an amount other than that permitted by the tariff in Schedule 4 [Tariff for hearing and review costs] if, in the judgment of the panel or review board, it is reasonable and appropriate to so order.

(5) The cost of disbursements that are reasonably incurred may be added to costs payable under this Rule.

(6) In the tariff in Schedule 4 [Tariff for hearing and review costs],

(a) one day of hearing includes a day in which the hearing or proceeding takes 2 and one-half hours or more, and

(b) for a day that includes less than 2 and one-half hours of hearing, one-half the number of units or amount payable applies.

(7) If no adverse finding is made against the applicant, the panel or review board has the discretion to direct that the applicant be awarded costs.

(8) If the citation is dismissed or rescinded after the hearing has begun, the panel or review board has the discretion to direct that the respondent be awarded costs in accordance with subrules (3) to (6).

(9) Costs deposited under Rule 2-92 [Security for costs] must be applied to costs ordered under this Rule.

(10) An applicant must not be enrolled, called and admitted or reinstated until the costs ordered under this Rule or the Act are paid in full.

(11) As an exception to subrule (10), the Credentials Committee may direct that an applicant be enrolled, called and admitted or reinstated even though costs ordered under this rule have not been paid in full and may make the direction subject to any conditions that the Committee finds appropriate.

Application to vary certain orders

5-12 (1) An applicant or respondent may apply in writing to the President for

(a) an extension of time

(i) to pay a fine or the amount owing under Rule 5-11 [Costs of hearings], or

(ii) to fulfill a condition imposed under section 22 [Credentials hearings], 38 [Discipline hearings], or 47 [Review on the record],

(b) a variation of a condition referred to in paragraph (a) (ii), or

(c) a change in the start date for a suspension imposed under section 38 [Discipline hearings] or 47 [Review on the record].

(2) An application under subrule (1) (c) must be made at least 7 days before the start date set for the suspension.

(3) [rescinded 06/2016]

(4) The President must refer an application under subrule (1) to one of the following, as may in the President’s discretion appear appropriate:

(a) the same panel that made the order;

(b) a new panel;

(c) the Discipline Committee;

(d) the Credentials Committee.

(5) The panel or Committee that hears an application under subrule (1) must

(a) dismiss it,

(b) extend to a specified date the time for payment,

(c) vary the conditions imposed, or extend to a specified date the fulfillment of the conditions, or

(d) specify a new date for the start of a period of suspension imposed under section 38 [Discipline hearings] or 47 [Review on the record].

(6) If, in the view of the President and the chair of the Committee to which an application is referred under subrule (4) (c) or (d), there is a need to act on the application before a meeting of the Committee can be arranged, the chair of the Committee may hear the application and make the determination under subrule (5).

(7) An application under this rule does not stay the order that the applicant seeks to vary.

[(4) amended 09/2015; (1) amended, (3) rescinded 06/2016]

Failure to pay costs or fulfill practice condition

5-13 (1) An applicant or respondent must do the following by the date set by a hearing panel, review board or Committee or extended under Rule 5-12 [Application to vary certain orders]:

(a) pay in full a fine or the amount owing under Rule 5-11 [Costs of hearings];

(b) fulfill a practice condition as imposed under section 21 [Admission, reinstatement and requalification], 22 [Credentials hearings], 27 [Practice standards], 32 [Financial responsibility], 38 [Discipline hearings] or 47 [Review on the record], as accepted under section 19 [Applications for enrolment, call and admission, or reinstatement], or as varied under these Rules.

(2) If, on December 31, an applicant or respondent is in breach of subrule (1), the Executive Director must not issue to the applicant or respondent a practising certificate or a non-practising or retired membership certificate, and the applicant or respondent is not permitted to engage in the practice of law.

Recovery of money owed to the Society

5-14 (1) A lawyer or former lawyer who is liable to pay money as follows must pay to the Society the full amount owing by the date set by the Discipline Committee:

(a) costs of an audit or investigation;

(b) an assessment under Rule 3-80 [Late filing of trust report].

(2) A lawyer who has not paid the full amount owing under subrule (1) by the date set or extended by the Discipline Committee is in breach of these Rules and, if any part of the amount owing remains unpaid by December 31 following the making of the order, the Executive Director must not issue a practising certificate to the lawyer unless the Benchers order otherwise.

Reviews and appeals

Review by review board

5-15 (1) In Rules 5-15 to 5-28, “review” means a review of a hearing panel decision by a review board under section 47 [Review on the record].

(2) Subject to the Act and these Rules, a review board may determine the practice and procedure to be followed at a review.

(3) Delivery of documents to a respondent or applicant under Rules 5-15 to 5-28 may be effected by delivery to counsel representing the respondent or the applicant.

(4) If the review board finds that there are special circumstances and hears evidence under section 47 (4) [Review on the record], the Rules that apply to the hearing of evidence before a hearing panel apply.

[(3) amended 05/2016]

Review boards

5-16 (1) When a review is initiated under Rule 5-19 [Initiating a review], the President must establish a review board consisting of

(a) an odd number of persons, and

(b) more persons than the hearing panel that made the decision under review.

(2) A review board must be chaired by a Bencher who is a lawyer.

(3) Review board members must be permanent residents of British Columbia over the age of majority.

(4) The chair of a review board who ceases to be a lawyer may, with the consent of the President, continue to chair the review board, and the review board may complete any hearing or hearings already scheduled or begun.

(5) Two or more review boards may proceed with separate matters at the same time.

(6) The President may refer a matter that is before a review board to another review board, fill a vacancy on a review board or terminate an appointment to a review board.

(7) Unless otherwise provided in the Act and these Rules, a review board must decide any matter by a majority, and the decision of the majority is the decision of the review board.

[(4) amended 03/2016]

Disqualification

5-17 The following must not participate in a review board reviewing the decision of a hearing panel:

(a) a member of the hearing panel;

(b) a person who was disqualified under Rule 5-4 [Disqualification] from participation in the hearing panel.

Review board member unable to continue

5-18 (1) Despite Rule 5-16 [Review boards], if a member of a review board cannot, for any reason, complete a review that has begun, the President may order that the review board continue with the remaining members, whether or not the board consists of an odd number of persons.

(2) If the chair of a review board cannot, for any reason, complete a review that has begun, the President may appoint another member of the review board who is a lawyer as chair of the review board.

[(2) amended 03/2016]

Initiating a review

5-19 (1) Within 30 days after being notified of the decision of the panel in a credentials hearing, the applicant may initiate a review by delivering a notice of review to the President and counsel representing the Society.

(2) Within 30 days after being notified of the decision of a panel under Rule 4-44 [Disciplinary action] or 5-11 [Costs of hearings], the respondent may initiate a review by delivering a notice of review to the President and discipline counsel.

(3) Within 30 days after a decision of the panel in a credentials hearing, the Credentials Committee may initiate a review by resolution.

(4) Within 30 days after a decision of the panel in a hearing on a citation, the Discipline Committee may initiate a review by resolution.

(5) When a review is initiated under subrule (3) or (4), counsel acting for the Society or discipline counsel must promptly deliver a notice of review to the President and the respondent.

(6) Within 30 days after the order of the Practice Standards Committee under Rule 3-25 (1) [Costs], the lawyer concerned may initiate a review by delivering a notice of review to the President.

[(1), (2), (5) and (6) amended 06/2016]

Stay of order pending review

5-20 (1) When a review is initiated under Rule 5-19 [Initiating a review], the order of the panel or the Practice Standards Committee with respect to costs is stayed.

(2) When the Credentials Committee initiates a review under Rule 5-19 (3) [Initiating a review], an order of the hearing panel to call and admit or reinstate the applicant is stayed.

(3) When a review has been initiated under Rule 5-19 [Initiating a review], any party to the review may apply to the President for a stay of any order not referred to in subrule (1) or (2).

(4) The President may designate another Bencher to make a determination under subrule (3).

Notice of review

5-21 A notice of review must contain the following in summary form:

(a) a clear indication of the decision to be reviewed by the review board;

(b) the nature of the order sought;

(c) the issues to be considered on the review.

Record of credentials hearing

5-22 (1) Unless counsel for the applicant and for the Society agree otherwise, the record for a review of a credentials decision consists of the following:

(a) the application;

(b) a transcript of the proceedings before the panel;

(c) exhibits admitted in evidence by the panel;

(d) any written arguments or submissions received by the panel;

(e) the panel’s written reasons for any decision;

(f) the notice of review.

(2) If, in the opinion of the review board, there are special circumstances, the review board may admit evidence that is not part of the record.

Record of discipline hearing

5-23 (1) Unless counsel for the respondent and for the Society agree otherwise, the record for a review of a discipline decision consists of the following:

(a) the citation;

(b) a transcript of the proceedings before the panel;

(c) exhibits admitted in evidence by the panel;

(d) any written arguments or submissions received by the panel;

(e) the panel’s written reasons for any decision;

(f) the notice of review.

(2) If, in the opinion of the review board, there are special circumstances, the review board may admit evidence that is not part of the record.

Record of an order for costs by the Practice Standards Committee

5-24 (1) Unless counsel for the lawyer and for the Society agree otherwise, the record for a review of an order for costs under Rule 3-25 [Costs] consists of the following:

(a) the order;

(b) all correspondence between the Society and the lawyer relating to the assessment and ordering of costs;

(c) the Committee’s written reasons for any decision on costs;

(d) the notice of review.

(2) If, in the opinion of the review board, there are special circumstances, the review board may admit evidence that is not part of the record.

Preparation and delivery of record

5-24.1 (1) Within 60 days of delivering a notice of review, the party initiating the review must prepare the record for the review in accordance with the relevant rule and deliver

(a) 8 copies to the President, and

(b) 1 copy to the other party.

(2) The time for producing the record may be extended by agreement of the parties.

(3) No date may be set for the hearing of a review unless the party initiating the review has delivered all copies of the record required under subrule (1).

(4) By delivering to the President and to the other party written notice setting out the grounds for the application, the party initiating the review may apply for

(a) an extension of time to prepare and deliver the record, or

(b) an order that the Society bear all or part of the cost of obtaining and copying all or part of the record.

(5) When an application is made under subrule (4), the President must decide whether to grant all or part of the relief sought, with or without conditions, and must notify the parties accordingly.

(6) The President may

(a) designate another Bencher to make a determination under subrule (5), or

(b) refer the application to a pre-review conference.

(7) A determination under subrule (5) is without prejudice to an order of the review board under Rule 5-11 [Costs of hearings].

[added 05/2016; (1), (4) and (5) amended 06/2016]

Notice of review hearing

5-24.2 (1) The date, time and place for the hearing on a review to begin must be set

(a) by agreement between the parties, or

(b) on the application of a party, by the President or by the Bencher presiding at a pre-review conference.

(2) When a date is set under subrule (1), the President must notify the parties in writing of the date, time and place of the hearing at least 30 days before the date set for the hearing to begin, unless the parties agree to a shorter notice period.

[added 06/2016]

Pre-review conference

5-25 (1) The President may order a pre-review conference at any time before the hearing on a review, at the request of the applicant, respondent or counsel for the Law Society, or on the President’s own initiative.

(2) When a conference has been ordered under subrule (1), the President must

(a) set the date, time and place of the conference and notify the parties, and

(b) designate a Bencher to preside at the conference.

(3) Counsel representing the Society must be present at the conference.

(4) [rescinded 06/2016]

(5) The applicant or the respondent, as the case may be, may attend the conference, in person, through counsel or both.

(6) If the applicant or the respondent, as the case may be, fails to attend the conference, the Bencher presiding may proceed with the conference in the absence of that party and may make any order under this Rule, if the Bencher is satisfied that the party had been notified of the conference.

(7) If the Bencher presiding at a pre-review conference considers it appropriate, he or she may allow any person to participate in the conference by telephone or by any other means of communication that allows all persons participating to hear each other, and a person so participating is present for the purpose of this Rule.

(8) The conference may consider

(a) the simplification of the issues,

(b) any issues concerning the record to be reviewed,

(c) the possibility of agreement on any issues in the review,

(d) the exchange of written arguments or outlines of argument and of authorities,

(e) the possibility that privilege or confidentiality might require that all or part of the hearing be closed to the public or that exhibits and other evidence be excluded from public access,

(f) setting a date for the review, and

(g) any other matters that may aid in the disposition of the review.

(9) The Bencher presiding at a pre-review conference may

(a) adjourn the conference or the hearing of the review generally or to a specified date, time and place,

(b) order the exchange of written arguments or outlines of argument and of authorities, and set deadlines for that exchange,

(c) set a date for the review, subject to Rule 5-24.1 (3) [Preparation and delivery of record], and

(d) make any order or allow or dismiss any application consistent with this part.

[(9) amended 04/2016; 05/2016; (2) amended, (4) rescinded 06/2016]

Adjournment

5-26 (1) Before a hearing on a review commences, the applicant, respondent or counsel for the Society may apply for an order that the hearing be adjourned by delivering to the President and to the other party written notice setting out the grounds for the application.

(2) [rescinded 06/2016]

(3) Before the hearing begins, the President must decide whether to grant the adjournment, with or without conditions, and must notify the parties accordingly.

(4) The President may

(a) designate another Bencher to make a determination under subrule (3), or

(b) refer the application to a pre-review conference.

(5) After a hearing has commenced, the chair of the review board may adjourn the hearing, with or without conditions, generally or to a specified date, time and place.

[(5) amended 04/2016; (1) amended, (2) rescinded 06/2016]

Decision on review

5-27 (1) The decision of the review board on a review is made by majority vote.

(2) The review board must prepare written reasons for its decision on a review.

(3) When the review board gives written reasons for its decision, it must not disclose in those reasons any information that is confidential or subject to solicitor and client privilege.

(4) A copy of the review board’s written reasons prepared under subrule (2) must be delivered promptly to the applicant or respondent and counsel for the Society.

(5) On request, the Executive Director must disclose the review board’s written reasons for its decision.

[(4) amended 06/2016]

Inactive reviews

5-28 (1) If no steps have been taken for 6 months or more, a party may apply for an order dismissing a review by delivering to the President and the other party a notice in writing that sets out the basis for the application.

(2) [rescinded 06/2016]

(3) If it is in the public interest and not unfair to the respondent or applicant, the President may dismiss the review.

(4) The President may designate another Bencher to make a determination under subrule (3).

[(1) amended, (2) rescinded 06/2016]

Appeal to Court of Appeal

5-29 (1) The Discipline Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 [Appeal] of a decision of a panel or review board in a discipline hearing.

(2) The Credentials Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 [Appeal] of a decision of a panel or review board in a credentials hearing.

(3) The Practice Standards Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 [Appeal] of a decision of a review board with respect to an order for costs under Rule 3-25 [Costs].